All employers should note that that the Home Office has published a new draft code of practice on preventing illegal working which will apply to all right to work checks from 22 January 2024. The draft code sets out how employers can establish a statutory excuse for right to work checks and how civil penalties will be administered and calculated. 

The Home Office has also confirmed that from 22 January 2024, the starting point for a civil penalty will be £45,000 per worker for first breaches and £60,000 per worker for repeat breaches. 

Carrying out correct and up-to-date right to work checks is now more important than ever. Particularly given the increase in civil penalties and that some unscrupulous agencies are seeking to bring people to the UK illegally by enticing them with the promise of work. 

It is unlawful to discriminate against individuals on grounds of protected characteristics, including race, when carrying out right to work checks. Compensation awards for successful discrimination claims are uncapped. A separate Code of Practice for employers: Avoiding discrimination while preventing illegal working, gives further advice on how to operate checking processes that are non-discriminatory and in accordance with statutory equalities duties. Employers should apply checks to all employees, whether or not they may already believe the employee to be legally in the UK.

It is important to do the checks correctly and have systems in place to ensure that follow-up checks carried out during employment are done sufficiently in advance of the expiry date of the current right to work. Where this does not happen properly, an employer who cannot establish a statutory excuse will have to consider terminating the employee's employment. Employees with over two years of service are protected from unfair dismissal, so we recommend that reasonable efforts are made to be in a position to make the statutory excuse before dismissal decisions are made. 

If you are reading this and have any questions at all, please don't hesitate to get in touch to see how we can help your organisation stay compliant and make safe decisions.